Effective from November 2015
ADVERTISING SERVICES GENERAL TERMS AND CONDITIONS
These Advertising Services General Terms and Conditions (“General Terms and Conditions”), together with the applicable Advertising Representation Agreement (each, hereinafter referred to as the “Publisher Contract”), including all exhibits, attachments and schedules thereto or provided to Publisher at a later time, (collectively, the “Agreement”) govern the provision of the Service by Company or any of its affiliates to you (“Publisher”). In the event of any inconsistency between the General Terms and Conditions, the Publisher Contract, or any exhibits, attachments or schedules, the following order of precedent shall apply, unless otherwise expressly provided herein: the Publisher Contract, the General Terms and Conditions and then the remaining exhibits, attachments or schedules. Unless otherwise defined herein, all capitalized terms have the meaning provided in the Publisher Contract.
THIS IS A LEGAL AGREEMENT BETWEEN PUBLISHER AND COMPANY. BY SIGNING THE PUBLISHER CONTRACT, PUBLISHER IS AGREEING THAT PUBLISHER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THE AGREEMENT, INCLUDING THESE GENERAL TERMS AND CONDITIONS AND THE PUBLISHER CONTRACT, AND AGREES TO BE LEGALLY BOUND HEREBY AND THEREBY.
A. “Ad Tags” means any programming code or HTML provided by Company to be placed on the Properties in order to call relevant code to display Advertisements and record delivery of Advertisements for reporting and billing purposes.
B. “Advertiser” means any Person, including any affiliates of that Person, engaged in creating, placing, selling, buying, brokering or utilizing Advertisements, including any direct advertiser, advertising agency, advertising network, exchange or marketing representative.
C. “Advertisement Impressions” means the total number of times an Advertisement is capable of being served to, and received by, a unique visitor to the Property as measured by Company in accordance with its then-current standard practice.
D. “Advertisement Inventory” means, with respect to Advertisements viewed by users in a Territory, the total number of Advertisement Impressions on the Property.
E. “Advertisements” means any advertising provided by an Advertiser or other Person in connection with the Service or displayed on the Property, including, but not limited to, all text, in-text, graphical, audio, video, integrations or other promotional activity that appear on or in connection with the Property and that promotes the availability of any third-party products, services or merchandise including any advertisements sold through third-party advertising networks, agencies or brokers.
F. “affiliate” or “affiliates” of a specified Person means a Person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person and, with respect to an advertising agency or marketing representative, any clients represented by said agency or marketing representative.
G. “Content” means any and all content, whether text, image, video or otherwise, hosted or contained on Publisher’s Property.
H. “Objectionable Content” means content that is, promotes or contains links to content that is (i) pornographic, lewd or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) infringes upon the intellectual property rights of any third party, including copyrights, trademarks, trade names, trade secrets or patents of such third party; (vi) violates the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any fraudulent goods, services, schemes, investment opportunities or promotions or advice not permitted by law; (viii) promotes the use of illegal substances; or (ix) harmful to Company’s or any other party’s systems and networks, including malicious code adware, spyware or drive-by download applications; (x) violates any obligation of confidentiality; or (xi) unacceptable in Company’s sole discretion.
I. “Person” means any individual, corporation, partnership, limited partnership, limited liability company, advertising agency, syndicate, trust, association or other entity, whether related, unrelated, affiliated or independent, including Company and Publisher.
J. “Company Technology” means (i) Ad Tags; or (ii) any other technology provided to Publisher as a part of the Service.
In addition to the above definitions, any reference to “Publisher’s Net Revenue” in the Publisher Contract shall be replaced with the term “Publisher Payments.”
2. SERVICES. Company shall seek to buy, sell, broker, display and track Advertisements on the Properties as sold to, through or on behalf of any Advertiser or Person in accordance with these General Terms and Conditions and the terms of the Publisher Contract and to provide any other services agreed to by Company in the Publisher Contract (the “Service”). Company will provide the Services to the Publisher on the Properties and may engage any Person to do so, subject to any agency and brokerage fees, charge backs or other such set offs. Company shall have no obligation to provide the Services for any other media of Publisher not submitted by the Publisher to Company and approved by Company in writing in the Publisher Contract.
3. INTELLECTUAL PROPERTY
A. License to Use Company Technology. During the Term only, subject to Publisher’s full compliance with the terms and conditions of this Agreement and only to the extent access is provided by Company, Company hereby grants to Publisher a limited, non-exclusive, non- transferable, non-sublicensable license to use the Company Technology solely in connection with the Services, and in accordance with any instructions provided to Publisher by Company. Company may, at any time during the Term, revoke or rescind Publisher’s right to use Company Technology for any reason. In the event Company elects to terminate any license herein for the use of Company Technology, thereafter Company shall have no further obligations to Publisher as it relates to that specific Company Technology.
B. Reservation of Rights. Company reserves all rights in the Company Technology and Services not expressly granted in this Agreement including that Company and its licensors retain all right, title and interest in and to the Services, the Company Technology and the Advertisements, and all elements of each of those (including for the avoidance of doubt the Ad Tags) and all intellectual property rights therein.
C. Restrictions on Publisher. Publisher will not transfer, sublicense, lease, lend or otherwise distribute the Company Technology and/or Services to any third party or use the Company Technology and/or the Service(s) in any way that infringes third party rights or is unlawful or inconsistent with this Agreement. Publisher will not attempt to interfere with or disrupt the Services or the Company Technology (including by modification of any Ad Tags or any Advertisements, or the resyndication of any Advertisements) or attempt to gain access to any systems or networks that connect thereto (except as strictly required to access and use the Company Technology or Services). Except as expressly authorized in this Agreement, Publisher will not: (i) copy or modify the Company Technology or Services; (ii) sell, rent, lease, sublicense, transfer, distribute or otherwise make available the Company Technology and/or Services, or any copies thereof, to any third party; (iii) place any Company Technology or use the Services on any media other than the Properties; or (iv) enable a third party to do any of the foregoing. Publisher acknowledges that the Company Technology and Services constitute and contain trade secrets of Company and its licensors, and, in order to protect such trade secrets and other interests that Company and its licensors may have in the Company Technology and Services, Publisher agrees not to disassemble, decompile or reverse engineer the Company Technology or Services nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable law. Publisher shall not permit any other advertising video technology that is substantially similar to the Ad Solutions to be used on the Properties.
D. License to Use the Properties. Publisher grants to Company a non-exclusive, worldwide, royalty free, sub-licensable license to use the Properties for the purpose of providing the Services.
4. BILLING; PAYMENT
A. Invoicing. Company will invoice Advertisers monthly on or about the first (1st) day of each month. Company will generate monthly statements and seek to collect its accounts receivable; provided, however, that Company is not obligated or required to bring any lawsuit or engage any collection services to recover same, and retains sole and absolute discretion to manage its relationships with the Advertisers or its relationships with others in any way it sees fit, including (but not limited to) issuing refunds, discounts, free goods or make goods, and determining debt uncollectable. Company does not represent, warrant or guarantee that any payment will be made by any Advertiser, irrespective of whether the Publisher Payments has been recognized, and Company shall not be liable to Publisher, in any way, for any non-payment by any Advertiser.
B. Payment Terms. Payment to Publisher shall be based on the payment terms as set forth in the Publisher Contract. Publisher acknowledges and agrees that, notwithstanding any terms or provisions to the contrary in the Publisher Contract or elsewhere in the Agreement, and in addition to any other requirements or conditions stated in the Agreement regarding the recognition of Net Advertising Revenue, Net Advertising Revenue shall be recognized upon satisfaction of any metrics or standards agreed to by Company with Advertisers with respect to Advertisement Impressions delivered (e.g. viewability) and shall not include Advertisement Impressions generated as a result of Fraudulent Activity. In the event that Publisher and Company enter into a campaign specific email agreement, which shall set all pricing, contracted impression delivery goals and payment terms, including net paid CPMs, whether Company is paying for only viewed impressions (as determined by a third party) and other campaign specific terms, then said terms shall govern to the extent that they differ from the Agreement herein. Publisher may receive payments from Company or any of Company’s affiliates that may be providing the Service. As a condition precedent to payment, Publisher must notify Company of any changes to its account information, including change of address, phone or email address. In no event will payments be made on accounts that have not provided proper tax identification information. Publishers may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms as a condition precedent to payment. Company may withhold payment from any Publisher that does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Company’s sole and absolute discretion.
C. Reporting. All payments payable to Publisher will be based solely on Company's or Advertiser's reporting system. Paid, viewable, human (non-fraudulent), impressions, clicks and/or actions, and Publisher Payments generated on the Properties shall be determined by Company or Advertiser's reporting, audit or measurement system.
D. No Revenue Guarantee. Except as otherwise may be agreed to in writing on the Publisher Contract, Company makes no guarantee that any Advertisements will appear on any page of the Properties and there is no guarantee that this Agreement or the Services will generate any revenue for Publisher.
E. Credits. Without prejudice to Company’s other rights or remedies under this Agreement or at law, Publisher acknowledges and agrees that Company may, at its sole discretion, discount, credit back or accrue a credit against payments due to be paid to Publisher in circumstances in which Company reasonably believes that an Advertisement was not in fact delivered or where Advertisement views, impressions and/or click throughs have occurred as a result of fraudulent means (as reasonably determined by Company), or revenue is generated by reason of the actions of a person who is paid or deceptively motivated to click on and/or view Advertisements.
F. Withholding. In the event of Company’s reasonable suspicion of breach by Publisher of this Agreement, Company reserves the absolute right to withhold payment from Publisher and take such other steps as it deems necessary. Company will determine, in its reasonable discretion, whether acts or omissions of Publisher are deceptive, fraudulent or violate this Agreement.
G. Nature of Publisher Payments. Publisher Payments (and associated calculations, including that no Publisher Payments are owed) will be deemed final and not subject to challenge unless disputed in good faith by Publisher (by way of a writing setting forth with particularity the nature of the dispute) within ninety (90) days of receipt. Publisher acknowledges that Company will have the right to receive, own and recognize all revenue from Advertising, prior to and after the calculation of Net Advertising Revenue. At no time prior to Company’s making of Publisher Payments will Publisher have any possessory or ownership interest in amounts due under this Agreement. Publisher’s sole remedy in the event of a dispute over amounts due or payment will be to bring a claim for breach of contract against Company pursuant to Section 10(N).
H. Bad Debt. Company may deduct from any amounts due to Publisher Publisher's pro rata share of uncollectible payments from Advertisers which formed part of the payment(s)/calculation of the payment(s) which Company has previously made or given to Publisher under this Agreement; provided however that Company shall not deduct such uncollectible payments unless and until Company has not received payment from the relevant Advertiser from which the underlying payments are due by the date that is one hundred eighty (180) days following the date on which the related payment was made to Publisher. Company shall, at Publisher’s option, assign to Publisher the right to collect such debt and provide Publisher with information relating to the debt, including the name of the Advertiser, the Advertiser’s contact information and the advertising campaign at issue.
5. PUBLISHER’S OBLIGATIONS
A. Ad Serving. Publisher shall use good faith efforts to place Company’s Ad Tags on the Property within the time frame specified by Company and in accordance with any instructions reasonably provided by Company. Notwithstanding anything to the contrary, Publisher shall be obligated to implement the Ad Tags for all Advertisement(s) sold by Company in accordance with the instructions of any insertion order, inventory purchase order or other instructions conveyed by Company. Publisher’s obligation to implement the Ad Tags for all Advertisements sold by Company (with such obligation being in effect at the moment an insertion order is signed) shall survive the expiration or earlier termination of this Agreement. During the Term, Publisher shall comply with any requests made by Company to remove or alter the Ad Tags within fourteen (14) days of Company’s written request (including any request via email). Unless Company has requested otherwise, and provided that there are not any live or sold campaigns still running or to run on the Property, Publisher shall remove all Ad Tags within fourteen (14) days of the end of the Term. Company reserves the right to charge Publisher for any fees actually incurred by Company as a result of Publisher’s failure to abide by the requirements of the preceding sentence and Company shall further be entitled to withhold any revenue owed to Publisher as an offset against such amount.
B. Quality Assurance. Publisher shall design, operate and maintain the Property in accordance with reasonable industry standards and in compliance with any and all applicable laws and industry guidelines so that Company is provided the greatest opportunity to maximize its representation of the Property. To this end, Publisher will use its best efforts to ensure that the Property remains available and accessible to the public at all times, will invest in such hardware and software reasonably necessary to meet demand and to ensure reasonable response times and, except in emergency situations, minimize “down time” during periods which it may be reasonably anticipated that there will be demand to view or utilize the Property. Publisher further agrees to notify Company if any cookie-based or other similar ad serving technologies used by Company on the Property are being used to collect data on any child-directed site or the portion of any general audience site that is child-directed so as to enable Company to comply with terms of the Children's Online Privacy Protection Act or other data privacy or security laws.
C. Publisher Content. Publisher acknowledges that it is solely responsible for the Property and any Content and that Company has no responsibility to review the Property or Content. Publisher hereby represents, warrants and covenants that the Property does not and will not contain, or contain links to, Objectionable Content. Publisher agrees to indemnify and hold Company harmless from any third party claim brought against Company for a breach by Publisher of its representations, warranties or covenants herein.
D. Use of Property. Publisher hereby represents, warrants and covenants that (i) it owns or has obtained the necessary rights or licenses to the Content, (ii) use of the Property or the Content by Company or any of Company’s Advertiser clients will not infringe upon any third party intellectual property rights, including United States or foreign trademarks, patents, copyrights, rights of publicity, moral rights, music performance or other music-related rights, or any other third-party right; (iii) neither it, the Property, nor the Content will violate any applicable federal, state and local laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any applicable governmental authority or industry guidelines or privacy policies, including, without limitation, those that govern marketing email and all other anti-spam laws; and (iv) it has all necessary rights and authority to enter into this Agreement and place Advertisements on the Property.
E. Notice to Advertisers. Publisher agrees to:
i. To the extent Company has exclusive rights to represent the Property to Advertisers, inform Advertisers that Company is Publisher’s exclusive sales representative for the Territory for Advertisements and directly refer all inquiries regarding Advertisements on the Property to Company. To the extent Company has exclusive rights to represent the Property to Advertisers, Publisher hereby authorizes Company to designate itself as the primary sales representative for the Property for such Advertisers in all Company planning services, including DoubleClick/Dart’s Media Visor and Atlas, and agrees to execute such other and further documents as Company may reasonably require to effectuate such designation.
G. IASH. Advertisers in various territories require websites to represent compliance with the terms and conditions of certain government bodies or private organizations. Company sales efforts in those territories require compliance with certain standards as set by organizations such as “IASH” (for AU and the UK) or related organizations such as the “IAB” (in Canada and the United States) or such other organization as is or may subsequently be established (together, the “Ad Organizations”). Publisher agrees to make, and observe the requirements of, such representations and shall execute any and all forms relating to the requirements of Ad Organizations as may be required from time to time. Publisher understands that terms required by these Ad Organizations may be updated and/or revised from time to time and Publisher agrees to such updated or revised terms as they may be communicated to Publisher from time to time, via email, public posting or in a separate signed agreement. Publisher agrees to promptly return any supplementary agreement request of it by Company relating to compliance with such terms or conditions as may be established by Ad Organizations.
H. Fraudulent Activity. Notwithstanding any other provision of this Agreement, Company shall not be liable to Publisher for any Publisher Payments arising out of activity that is deceptive or fraudulent in nature (“Fraudulent Activity”) and Publisher shall not directly engage in any Fraudulent Activity. Examples of Fraudulent Activity may include, without limitation, (i) activities that are intended to inflate clicks or Advertisement Impressions, (ii) deceptive practices such as purchasing ‘suspicious’ or non-human (computer generated/BOTs) traffic to web pages on the Properties with the intent of inflating pageviews and Advertisement Impressions, (iii) the placement of Advertisements below-the-fold and not within the user’s viewable browser window, (iv) the provision of false lead information or multiple leads from a single individual, (v) the display of any Advertisements in pop-ups, pop-unders, exit windows, expending buttons, animation or other similar methods, (vi) the serving of Advertisements or driving of traffic to such Advertisement, using any downloadable applications or (vii) the placement of Advertisements on unapproved websites, in emails or any other location which has not been approved by Company. Publisher shall take all steps to prevent any Fraudulent Activity. Company shall have sole discretion, and shall exercise good faith in determining whether Fraudulent Activity has occurred. Publisher further agrees to provide full cooperation to Company in any investigation of possible Fraudulent Activity, including reasonable access to Publisher’s access logs and other customer and affiliate information related to such investigation.
I. Non-Solicitation. Publisher agrees that during the Term and for twelve (12) months thereafter, it will not (i) solicit any person who, at any time during the preceding twelve (12) month period, shall have been a salesperson for the Company (provided, however, that the foregoing restriction shall not apply to any such salesperson who responds solely to a general solicitation for employment contained in a newspaper, trade publication or other periodical) or (ii) contact any supplier, customer, or employee of the Company for the purpose of diverting any such supplier, customer or employee from the Company. In the event of a breach of part (i) of this paragraph, each party acknowledges that it would be difficult and impractical to ascertain the damages to the Company, and therefore Publisher agrees that it shall pay to the Company as liquidated damages, and not as a penalty, an amount equal to one hundred percent (100%) of the employee’s annual compensation including salary and bonuses (or such employee’s annual compensation as of the last date of his or her former employment, whichever is greater), which amount constitutes a fair and reasonable estimate of those damages. Publisher waives any right to claim hereafter that such amount is not fair and reasonable under the circumstances. THE PARTIES AGREE THAT AN AWARD OF SAID SUM AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH THE COMPANY MIGHT BE ENTITLED BY VIRTUE OF THE BREACH PART (i) OF THIS SECTION AND SHALL BE THE COMPANY’S SOLE AND EXCLUSIVE REMEDY SOLELY WITH RESPECT TO A BREACH PART (i) OF THIS SECTION. THE PARTIES AGREE THAT THIS PROVISION IS INTENDED TO COMPLY WITH CALIFORNIA CIVIL CODE SECTION 1671, ET. SEQ. The parties further agree that the parties’ agreement to liquidate damages under this section relates to a breach of part (i) only and not on account of a breach of part (ii), in which case the Company may seek any and all available damages from the Publisher.
6. COMPANY’S OBLIGATIONS
A. Advertisement Content. Company will request that Advertisers cause all Advertisements not to contain, or contain links to, any Objectionable Content. Publisher recognizes and agrees that Company does not control the content of Advertisements and that if Publisher in good faith believes that an Advertisement contains Objectionable Content, Publisher’s sole recourse shall be to advise Company and Company, Publisher and the Advertiser shall cooperate to remove the Objectionable Content.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PARTIES
A. Confidentiality. In connection with the Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means the terms of the Agreement or any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, software, plans, financial information, customer and supplier lists. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; (vi) is approved for release or disclosure by the disclosing party without restriction or (vii) is required to be disclosed by a court or regulatory agency of competent jurisdiction. Except as expressly permitted in the Agreement or as necessary to perform obligations in connection with this Agreement, each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information, except as necessary to perform obligations in connection with this Agreement. Notwithstanding the foregoing, Company shall be entitled to disclose the terms of the Agreement to its affiliates, lenders, auditors, legal advisers, auditors or any investor or potential investor in it or its affiliates. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis, provided that, it shall be liable for the acts or omissions of any third party to which it provides Confidential Information. Upon the termination or expiration of the Agreement, and upon request of the other party, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge archived data if the obligations of this section continue to be observed.
B. Indemnity. Each party agrees to indemnify, defend and hold harmless the other party, its affiliates and their respective officers, directors and employees from and against any and all claims, causes of action, demands, costs, liabilities, expenses and/or damages (including reasonable attorneys’ fees and expenses) arising out of or in connection with any breach of this Agreement by such party.
C. Authority. Each of Publisher and Company warrants that (i) it has all necessary rights and authority to enter into the Agreement on their own behalf and (ii) it will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under the Agreement. Publisher warrants that its entrance into the Agreement does not conflict with the provisions of any of Publisher’s existing agreements and it owns or has the rights to all content, products, and services on the Properties to perform its obligations herein.
D. No Other Representations or Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THE AGREEMENT, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE ADVERTISEMENTS, APPORTIONMENTS, ALLOCATIONS, OR ANY VOLUME, POTENTIAL VOLUME OF SALES OR THE LEVEL OF PUBLISHER PAYMENTS ATTAINABLE OR ITS PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH OF COMPANY AND PUBLISHER EXPRESSLY DISCLAIMS (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT, AND (II) ANY WARRANTY REGARDING THE PROPERTY, INCLUDING ITS CORRECTNESS, QUANTITY, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY.
E. Limitation of Liability. EXCEPT AS PROVIDED IN THE AGREEMENT WITH RESPECT TO INDEMNIFICATION OR EXCLUSIVITY OBLIGATIONS, NEITHER COMPANY NOR PUBLISHER SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, SUCH AS LOST PROFITS, LOST REVENUE, AND THE LIKE; PROVIDED, HOWEVER, THAT LOST COMPANY’S COMMISSION FOR THE REMAINDER OF THE TERM IN THE EVENT OF A BREACH BY PUBLISHER SHALL BE CONSIDERED DIRECT DAMAGES AND SHALL NOT BE EXCLUDED BY THIS PARAGRAPH AS BEING INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES.
8. TERMINATION; BREACH OF THE AGREEMENT. Each party shall have the right to terminate this Agreement if the other party materially breaches any of the terms and provisions of this Agreement; provided that the party in breach must first be notified in writing by the other party specifying the particular breach and given ten (10) days within which to cure the breach. If the party in breach fails to cure the breach within ten (10) days after receiving such written notice, the other party shall have the right to terminate this Agreement immediately. In the event of a breach by Publisher, Company shall have the rights to (i) withhold any amounts owed or payable to Publisher and to retain and offset same against any damages arising from (or which may arise from) said breach, and (ii) cease selling Advertisements on the Property, and remove or disable any Advertisements currently running on the Property, until such time as the breach is resolved or this Agreement is terminated. Publisher hereby expressly authorizes and consents to Company withholding and retaining for its own account any of such amounts. Upon the termination of the Agreement, Sections 4, 5(a), 7(a), 7(b), 7(d), 7(e) and 10 shall survive any termination or expiration of the Agreement for any reason.
9. INDEPENDENT EVALUATION. EACH PARTY ACKNOWLEDGES THAT IT HAS READ THE AGREEMENT, INCLUDING THESE GENERAL TERMS AND CONDITIONS AND THE PUBLISHER CONTRACT, UNDERSTANDS, AND AGREES TO, ALL OF THE TERMS AND CONDITIONS. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD AN ADEQUATE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF ITS OWN CHOOSING PRIOR TO SIGNING THE AGREEMENT. EACH PARTY HAS INDEPENDENTLY EVALUATED THE RISKS AND REWARDS OF ENTERING INTO THE AGREEMENT AND ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THE AGREEMENT.
A. Relationship of the Parties. The relationship between the parties is that of independent contractors. Company shall perform its services on its own account and not as an agent for Publisher. The relationship between the parties shall not under any circumstance be deemed to be a relationship of confidence or trust or an agency or fiduciary relationship. Company shall not owe any fiduciary duty to Publisher. Publisher acknowledges, authorizes and agrees that amounts received as Publisher Payments may be commingled by Company with its general funds and other funds received and maintained by Company. No trust is created. Publisher is aware that Company owns and operates publishing properties that may compete for advertising dollars.
B. Notices. Except as provided in the Sections below titled “Marketing/Public Relations” or “Amendment”, any notice, demand, request or other communication which is required, called for or contemplated to be given or made hereunder to or upon any party hereto shall be deemed to have been duly given or made for all purposes if in writing and sent by (i) personal delivery, in which case notice shall be deemed to have been given on the date of delivery; or (ii) UPS, Federal Express, DHL or other nationally-recognized overnight delivery service, in which case notice shall be deemed to have been given the day after deposit of such notice with such service, to such party at the contact information set forth underneath such party’s signature hereto (or such other contact information as either party hereto may at any time, or from time to time, direct by notice given to the other party in accordance with this Section).
C. No Waiver. No course of dealing of any party hereto, no omission, failure or delay on the part of any party hereto in asserting or exercising any right hereunder, and no partial or single exercise of any right hereunder by any party hereto shall constitute or operate as a waiver of any such right or any other right hereunder. Except as otherwise contemplated hereby, no waiver of any provision hereof shall be effective unless in writing and signed by or on behalf of the party to be charged therewith. No waiver of any provision hereof shall be deemed or construed as a continuing waiver, as a waiver in respect of any other or subsequent breach or default of such provision, or as a waiver of any other provision hereof unless expressly so stated in writing and signed by or on behalf of the party to be charged therewith.
D. Amendment. Any waiver, amendment or other modification of any provision of the Agreement shall be effective if such waiver, amendment or modification is in writing and signed by both parties. Notwithstanding the foregoing, Company may make changes to these General Terms and Conditions from time to time. When these changes are made, Company will notify Publisher of such changes by making the new version of the General Terms and Conditions available via email or through PubOps. Publisher understands and agrees that it shall check the General Terms and Conditions on a regular basis and if Publisher uses or enjoys the benefits of the Services at any time ten (10) or more days after the date on which Company has made new terms available to the Publisher, such use or enjoyment of the Services and/or the benefits of the Services shall be deemed acceptance of the updated General Terms and Conditions. Any new version of the General Terms and Conditions shall supersede any prior versions and shall be effective for the entire Term of the Publisher Contract. If Publisher does not agree to such new terms, it must notify Company immediately in writing and Company and Publisher agree to negotiate the content of the new General Terms and Conditions in good faith.
E. Severability. In the event a provision contained herein is held to be unlawful or unenforceable, such provision shall be severable from the remaining provisions of the Agreement, which shall remain in full force and effect.
F. Redirection. If Publisher redirects the domain pointer to another URL, transfers seventy-five percent (75%) or more of the content on any Property to another URL, or otherwise directly or indirectly converts, transfers, replaces, substitutes or migrates seventy-five percent (75%) or more of the Property to another URL, such other URL shall thereafter be included within the definition of Property for purposes of the Agreement.
G. Successors and Assignees. The Agreement may be assigned in whole or in part by either party without the consent of the other party and shall be binding on each party’s respective successors and assigns; provided, however, that any assignee of Publisher must hold the same rights, title and interest as Publisher in and to the Property, as reasonably determined by Company. A transfer of the Property by Publisher to another party shall not relieve Publisher of its obligations under the Agreement.
H. Governing Law. The Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of the State of California, without regard to conflicts of law principles that would require the application of any other law, and regardless of where the parties hereto may now or hereafter reside, be organized or do business.
I. Venue, Jurisdiction and Forum. The Agreement is deemed made and entered into in Los Angeles, California, and will be performed in Los Angeles, California. To the extent that any proceeding arising out of or relating to the Agreement or the transactions contemplated hereby does not fall within the scope of the terms of Section 10(O) or for purposes authorized by Section 10(O), each of the parties hereto hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts, as applicable, located within the County of Los Angeles, in connection with any proceeding arising out of or relating to the Agreement or the transactions contemplated hereby, and waives any objection to venue in such courts.
J. Limitation of Claims. Any and all claims arising out of or relating to this Agreement or the relationship among the parties to this Agreement will be barred unless an action or proceeding is commenced within one year from the date Publisher or Company knew or should have known of the facts giving rise to such claim.
K. Further Assurances. Each party hereto covenants and agrees promptly to execute, deliver, file or record such agreements, instruments, certificates and other documents and to perform such other and further acts as the other party hereto may reasonably request or as may otherwise be necessary or proper to consummate and perfect the transactions contemplated hereby.
L. Force Majeure. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
M. Interpretation. Throughout the Agreement, the use of the singular shall be deemed to include the plural and where any term or phrase is written in lower case letters, it shall have the same meaning ascribed to it as though it is written in title case letters. Headings are for convenience only. As used in the Agreement, the words “include,” “includes” or “including” are used in a non-exclusive sense. When a reference is made in the Agreement to an Article, a Section or Exhibit, such reference shall be to an Article or a Section of, or an Exhibit to, the Agreement unless otherwise indicated. Unless otherwise expressly provided in the Agreement to the contrary, any consent, acceptance, approval or authorization of Company which Publisher may be required to obtain may be given or withheld by Company in its sole discretion, and on any occasion where Company is required or permitted to make any judgment, determination or use its discretion, including any decision as to whether any condition or circumstance meets Company’s satisfaction, Company may do so in its sole subjective judgment and discretion. No provision in the Agreement expressly identifying any particular breach of the Agreement as material shall be construed to imply that any other breach which is not so identified is not material. Neither the Agreement nor any uncertainty or ambiguity in the Agreement shall be construed or resolved against the drafter, whether under any rule of construction or otherwise. On the contrary, the Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all parties. Company and Publisher intend that if any provision of the Agreement is susceptible to two or more constructions, one of which would render the provision enforceable and the other or others of which would render the provision unenforceable, then the provision shall be given the meaning that renders it enforceable.
N. Agreement to Arbitrate. Any controversy or claim between Company and Publisher arising out of or relating to or connected with this Agreement or any alleged breach hereof, and any issues pertaining to the arbitrability of such controversy or claim and any claim that this Agreement or any part hereof is invalid, illegal, or otherwise voidable or void, shall be submitted to binding arbitration. Said arbitration shall be conducted before and will be heard by one arbitrator in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). Judgment upon any award rendered may be entered in any Court having jurisdiction thereof. Except to the extent prohibited by Applicable Law, the proceedings shall be held in the City of Los Angeles, State of California. In no event may the material provisions of this Agreement be modified or changed by the arbitrator at any arbitration hearing. The substantive law applied in such arbitration shall be the State of California. The arbitration and the parties’ agreement therefor shall be deemed to be self executing, and if either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party despite said failure to appear. All issues relating to arbitrability or the enforcement of the agreement to arbitrate contained herein shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.), notwithstanding any provision of this Agreement specifying the state law under which this Agreement shall be governed and construed. The petitioning party shall bear the cost of said arbitration and said fees and expenses are not recoverable as part of the award.
i. Awards. The arbitrator will have the right to award or include in his award any relief which he or she deems proper in the circumstances, only to the extent permitted by this Agreement and applicable law, provided that the arbitrator will not have the authority to award exemplary or punitive damages or attorneys’ fees to either party. The award and decision of the arbitrator will be conclusive and binding upon all parties and judgment upon the award may be entered in any court of competent jurisdiction. The parties shall be bound by the provisions of any limitation on the period of time by which claims must be brought. The parties agree that, in connection with any such arbitration proceeding, each will submit or file any claim which would constitute a compulsory counter claim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceedings as the claim to which it relates. Any such claim which is not submitted or filed in such proceeding will be barred. In no event may the provisions of the Agreement, or any ancillary agreement executed in connection with this Agreement, including, without limitation, amendments to this Agreement be waived, modified, changed, or otherwise equitably excused by the arbitrators at any arbitration hearing. The parties do not grant the arbitrators the powers of an amiable compositeur and the arbitrators do not have the power to decide ex aequo et bono. The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction (as provided in Section 10(I)) for any such error. The award of the arbitrators shall be the exclusive remedy between the parties regarding any claims, counterclaims, issues, or accountings presented or pled to the arbitrators. Judgment upon the award of the arbitration shall be entered by, and the parties may have the judgment domesticated by, any court of competent jurisdiction in accordance with Section 10(I).
ii. Permissible Parties. Publisher and Company agree that arbitration will be conducted on an individual, not a class wide, basis and that any arbitration proceeding between Publisher and Company will not be consolidated with any other arbitration proceeding involving Company and any other person or entity. All arbitration proceedings and claims shall be filed and prosecuted separately and individually in the name of Publisher and Company, and not in any representative capacity.
P. Entire Agreement. These General Terms and Conditions, the Publisher Contract and all related schedules, exhibits or attachments contain the terms of the entire agreement among the parties with respect to the subject matter hereof and supersedes any and all prior agreements, commitments, understandings, discussions, negotiations or arrangements of any nature relating thereto (including, but not limited to, any email communications between the parties).